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Whistleblower Relief: Dropping the Collaery Case

The Anglo-Australian legal system has much to answer for. While robed lawyers and solemn justices proclaim an adherence to the rule of law, the rule remains a creature in state, more fetish than reality. Had the farcical prosecution of former ACT Attorney-General Bernard Collaery gone on, all suspicions about a legal system slanted in favour of the national security state would have been answered.

Collaery, a sagacious and well-practiced legal figure, has been the subject of interest under section 39 of the Australian Intelligence Services Act 2001 (Cth), which covers conspiracies to reveal classified information. It all began when he was, in the natural order of things, consulted by former intelligence officer Witness K. Witness K has been convicted for revealing the existence of a 2004 spying operation conducted by the Australian Secret Intelligence Service (ASIS) that led to the bugging of cabinet offices used by the Timor-Leste government.

The operation was instigated at the behest of Australia’s corporate interests. At the time, Canberra was involved in treaty negotiations with Timor-Leste on the subject of accessing oil and gas reserves. East Timor’s crushing poverty and salivating need for hard cash did not interest Australia’s own resource companies and the desk bureaucrats in Australia’s capital.

In 2013, both men lent their services to the East Timorese cause before the Permanent Court of Arbitration in the Hague. Australia’s illegal operation was finally going to make it into international law proceedings, thereby invalidating the original agreement reached between Dili and Canberra.

Alarm bells sounded and raids in Canberra were made, though nothing stirred the prosecutors till 2018. Wishing to stake his claim to protecting national security, Attorney General Christopher Porter, in contrast to his predecessor, thought it appropriate to commence legal proceedings against Collaery and Witness K. As matters proceeded, Porter’s fascination, and obsession with secrecy, became evident. Attempts were made to hold the trials in utter secrecy and out of the scrutinising mischief of the press. The Attorney General also imposed a national security order that prevented the parties from divulging details of the prosecution to the public or press.

With Witness K’s conviction, Collaery was left standing to counter five charges alleging that he communicated information to various ABC journalists prepared by or on behalf of ASIS and allegedly conspired with Witness K to communicate that same information to the Government of Timor-Leste.

The efforts against Collaery began to resemble those of a smug and doltish inquisition keen to draw out proceedings and fritter away accountability. There were efforts made to restrict the accused from actually seeing the evidence that might be used against him in trial. There were attempts to prevent the release of the full published reasons of the ACT appeals court, which found that various “identified matters” in the Commonwealth case against Collaery should be made available to the public. Open justice can be such a nuisance.

Lawyers and observers covering the case noted how the proceedings against the barrister had descended into a charade. Kieran Pender of the Human Rights Law Centre, attending the sessions with almost religious dedication, compared it to a “lottery – would I be permitted into court today, or would the secrecy shrouding the case win out?”

With the election of the Albanese government, a change of approach was aired. Australia’s new Attorney-General, Mark Dreyfus, decided to call an end to matters. “I have had careful regard to our national security interest and the proper administration of justice,” he claimed in making the decision. The “decision to discontinue the prosecution was informed by the government’s commitment to protecting Australia’s national interest, including our national security and Australia’s relationships with our close neighbours.”

Dreyfus did all he could to suggest that this case was not a sign of future leniency to whistleblowers. It was “an exceptional case. Governments must protect secrets and our government remains steadfast in our commitment to keep Australians safe by keeping secrets out of the wrong hands.”

Independent MPs who had protested against Collaery’s treatment expressed relief. Rebekha Sharkie, in welcoming the decision, condemned the previous Attorney General for pursuing a “politically-motivated prosecution” which was “an embarrassment to the rule of law in Australia.”

 

 

East Timorese notables long enchanted by the good grace of Collaery and Witness K were relieved by the decision. Xanana Gusmão, in a statement, commended the decision to discontinue the prosecution. Collaery had been “prosecuted for alleged breaches of Australian national security laws by disclosing that the Australian intelligence services bugged Timor-Leste’s cabinet room during oil and gas negotiations.” Such bugging for commercial purposes had been “illegal and unconscionable.”

 

 

The Dreyfus decision does not end the matter. Prosecutions against whistleblowers in Australia, encouraged by weak and vague protections, remains current fare. The whistleblower David McBride, who revealed the extent of alleged war crimes by Australian special forces in Afghanistan, still faces the prosecutor’s brief. As does Richard Boyle, the Australian Tax Office whistleblower who revealed ill-doings at the tax office.

Pender suggests that these prosecutions should also be dropped. For the sake of the rule of law, his arguments are hard to fault. But the national security state clings and claws, preventing reforms. Even Dreyfus finds it hard to escape its embrace.

 

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10 comments

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  1. pierre wilkinson

    our previous “open and transparent” government were anything but, with an obsession for secrecy and cabinet confidentiality that transcended paranoia…
    thankfully we are approaching an era beyond that

  2. RoadKillCafe

    Pierre, what gives you this certainty?

  3. Fred

    Can somebody please explain to somebody a thick as myself how the details of the whole bugging incident is “classified” information, vis. in some way likely to affect Australia’s security, when it really relates to commercial interests?

    Wasn’t illegal activity under international law “the bugging” carried out at the behest of key individuals in the government, who should have known better? This issue is clearly a “public interest” matter. I’m betting that when the cabinet papers come out, chances are the instigation and approval process for the bugging will not appear. It is logical to expect most governments have spies everywhere and internally monitor some of their citizens, but when they overstep the mark should be held accountable.

  4. StephenGB

    Whilst there is much to admire about the current direction of the ALP, I agree with the sentiment stated by RoadKillCafe.

    It is early days, we certainly do need a Bill of Rights or at least the legislation that enshrined the Declaration of Human Rights.

    I suggest none of us should ever forget to be vigilant and hold this new government to account.

  5. Socrates.

    Criminality on a undreamed of scale and what we know is only the tip of the ice berg.

  6. Andrew Smith

    The LNP had become too influenced by imported fossil fueled US radical right libertarian agitprop, nativism and worship of the ‘Anglosphere’ at the expense of our own regional relations.

    Meanwhile some former politicians, although registered as foreign agents, are happy to the bidding of foreign nations including ‘illiberal democracies’ popular with Fox News, Putin etc., because…?

    For several years US conservative academic & journalist Anne Applebaum had some choice words for those round the same think tank…. they could possibly claim naivety (one did reverse ferret and disappeared from the website within 24 hours of an Applebaum tweet)

    https://www.smh.com.au/politics/federal/why-australia-s-conservatives-are-finding-friends-in-hungary-20190924-p52uim.html

  7. Terence Mills

    This was such an egregious crime that the former Australian spy dubbed Witness K was given a three-month suspended sentence for conspiring to reveal classified information about the (alleged) spying operation at the Timor Leste parliamentary offices.

    In legal terms that is not even a slap on the wrist yet they still pursued his lawyer, Collaery a 77 year old man of integrity who they tried to destroy financially and reputationally.

    They badly wanted a conviction so that Collaery could no longer practice law and attempt to rebuild his business and his retirement
    nest-egg.

    Now at least his legal expenses over eight years of defending himself against these thugs should be reimbursed and with any luck, he will be able to receive some compensation, perhaps from Christian Porter’s Blind Trust.

    I wonder if Alexander Downer is quaking in his fishnet stockings at the prospect that the long arm of the law will finally catch up
    with him ?

  8. Socrates.

    Very Assange, all the blame the victim stuff and just as sinister.

  9. RomeoCharlie29

    Well done Mark Dreyfus, now to Boyle and McBeide, then the serious stuff the inquiry into ASIS and Dolly Downer, I am amazed that the ABC still gives Downer and the war criminal Howard air time with Howard scheduled to appear in the ABC archives based program with David Wenham. Sure Howard instituted gin buybacks, and as Treasurer ended the bottom of the Harbour tax rorts but surely taking us into an illegal, immoral and expensive war in Iraq based
    In the lie of WMD and the Tampa election disqualify him from the adulation he seems to be getting. Besides he’s no friend of the ABC having cut millions from its budget as Fraser’s treasurer then again as PM. His whining voice offends me more than Morrison blather and that’s saying something.

  10. Terence Mills

    While Witness K agreed to plead guilty and in return received a minimal penalty (a three month suspended sentence) there is still the record of a conviction on his otherwise unblemished record.

    We now need to see the Attorney General quash the conviction and issue a formal free and absolute pardon to Witness K.

    Then comes the necessary enquiry into the bugging of the Timor Leste parliamentary offices and whether this was done for national security reasons or to foster commercial interests.

    This has a way to go !

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